Tricky question... wife and I have a new home... wife had the an old mobile home & land... from diseased husband years earlier.. so her and I decide to get a new home, was easier for her to do this with the land, and at the time my credit wasn't high enough... so we put it all in her name, I helped w/ down payment, etc.. NEW HOME in Nov 06', we got married in Jan 07'... now here it is Dec 08' she's considering divorce... Exactly what am I intitled too ? I have invested down payment, mortgage payments for past 2yrs.

Florida is a community property state. Had this been Ohio, then you would only be entitled to whatever money you contributed towards the new home. In Florida you would be splitting the home down the middle.

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Originally Posted by southerngraphx

tricky question... wife and i have a new home... wife had the an old mobile home & land...from diseased husband years earlier.. so her and I decide to get a new home, was easier for her to do this with the land, and at the time my credit wasn't high enough...so we jus put it all in her name, i helped w/ down payment, etc.. NEW HOME in Nov 06', we got married in Jan 07'... now here it is Dec 08' she's considering divorce......... Exactly what am I intitled too ? I have invested down payment, mortgage payments for past 2yrs.

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Because the marriage was so short you might not get much considering she was the one that put the most into it. Because it was bought prior to the marriage it could be considered separate property and she did get it through inheritance too. You might need a lawyer to sort through property division plan and see where it goes from there.

http://www.18884mydivorce.com/pub/st...on-statute.htm

Yours is a somewhat complicated question but not terribly so.

I can give you an idea of how California would decide the question but you will need to consult a Florida family law attorney for a definitive answer.

First keep in mind the house is NOT community property in California. And this is not so much because it is titled in your wife's name alone as that it is a pre-marital acquisition. Marital acquisitions are presumed to be community property, not property acquired before marriage. So that part is easy (actually we have one really weird appellate case in California, that I personally disagree with, that said otherwise, but that is another matter). And since the house is not community property, its equity is not divided equally. In other words you do not own half the house simply because you married your wife.

So, what about your down payment? Does it matter that you helped your wife buy this house? The answer is maybe. She will say your down payment was simply a gift to her and that you are not entitled to any of it back. To refute this you will have to argue that you had an understanding with her, an agreement of sorts, to own the property together with you making a down payment and her contributing a mobile home and some land (I assume that was her contribution). Since you gave her the money that is what is called "partial performance" and that can serve to get you around the statute of frauds, a legal defense that would ordinarily bar enforement of an oral agreement to purchase property. Of course, she will argue that the deed is in HER name, which serves to counter any oral agreement you have to own the property together. In other words, the deed creates a presumption that she owns the property alone and you must come forward with clear and convincing evidence (a higher standard that the usual preponderance of evidence standard) to rebut this presumption (the title presumption) by arguing some agreement to own the property other than as indicated in the title. This is not an easy thing to do (you can do this in California with respect to pre-marital acquisitions only-- agreements to change the character of property during marriage require a writing).

Whether you will prevail in that claim is a matter for trial and for a judge to determine based upon the evidence. From my perspective, it appears you do not have a very strong case to prove an agreement to own the property together (for example, if you agreed to do so why didn't your wife put you on title after the house was purchased-- either before the wedding or after?) If for some reason you prevailed, then a more difficult question to answer would be how to characterize the property: if jointly owed is it to be treated like a joint tenancy (with right of survivorship) or a tenancy in common (without a right of survivorship)? The result may affect the ultimate division of the equity in the property (whether it is split down the middle, or whether the disparate contributions to the purchase price create separate and different reimburseable interests).

Now, if the house is your wife's separate property (i.e. the judge does not believe you had an agreement before marriage to own the house together), you might still have an interest in the property. The contibutions made to the mortgage that reduced the principal balance on the loan create a reimburseable interest of the community (what we call a "Moore-Marsden" interest based upon two cases, Moore and Marsden) and to the extent the property appreciated during marriage the community owns a portion of the appreciation in the ratio that the pay down of the principal (not payments that went to interest and taxes) bear to the payments made with separate property that also contributed to the acquisition of the property. Calculating the exact interest of the community requires knowing some basic facts such as: The purchase price of the property, its value on the date of marriage, current fair market value, the amount by which the principal balance on the mortgage was reduced by payments with community funds.

A Moore-Marsden interest does not usually generate an enormous interest in the property and refinancing can affect the result. Generally speaking, the community is entitled to be reimbursed for the community funds that reduced the principal loan balance and a pro rata interest in the appreciation based upon the formula I described. Again, check with a local attorney to see how your state approaches this issue.

There have been a number of law review articles written on this subject and, while they are interesting, each state has a somewhat different approach. This is not something ordinarily codified by statute and is ordinarily the result of case law, which has developed over the years (Washington has a somewhat different approach to California on this, but similar- Nevada for example adopted California's approach with a modification suggested by a 1983 law review article written by a law student at UC Berkeley).

Again, it's a little complicated but to make it simple, in California you probably would not own half of the house (as many people would think).